People ex rel. Stead v. Drainage

• Decision Date: 03 April 1912
• Citation: 253 Ill. 479,97 N.E. 1042
• Parties: PEOPLE ex rel. STEAD, Atty. Gen., et al. v. SPRING LAKE DRAINAGE AND LEVEE DIST. et al.
• Court: Illinois Supreme Court

253 Ill. 479

97 N.E. 1042

PEOPLE ex rel. STEAD, Atty. Gen., et al.

v.SPRING LAKE DRAINAGE AND LEVEE DIST. et al.

Supreme Court of Illinois.

Feb. 23, 1912.

Rehearing Denied April 3, 1912.

Appeal from Circuit Court, Tazewell County; T. M. Harris, Judge.

Action by the People, on the relation of W. H. Stead, Attorney General, and others, against the Spring Lake Drainage and Levee District, and others, and action by the Spring Lake Drainage and Levee District and others against W. H. Stead, Attorney General, and others. The causes were consolidated and a decree entered i favor of the Spring Lake Drainage and Levee District and dismissing the bill filed by the Attorney General and others. The Attorney General and the Canal Commissioners of the State appeal. Reversed and remanded, with directions.W. H. Stead, Atty. Gen., Thomas E. Dempcy, June C. Smith, and George B. Foster (Noleman & Smith, of counsel), for appellants.

Prettyman, Velde & Prettyman, Potts & Conaghan, and W. R. Curran, for appellees.

VICKERS, J.

Two suits in equity were pending in the circuit court of Tazewell county, both of which involved substantially the same questions and the same parties. The causes were consolidated and heard together and a decree rendered which determined the questions involved in both causes. One of these bills was filed by the Spring Lake Drainage and Levee District and others against the Canal Commissioners of the State of Illinois, W. H. Stead, Attorney General, and others, and its purpose was to enjoin the defendants from interfering with the drainage district in the construction and completion of a levee or embankment across the natural outlet of Spring Lake. The other bill was filed by the Attorney General and the Canal Commissioners, and its purpose was to enjoin the drainage district from constructing certain levees and embankmeknts, the effect of which would be to destroy navigation upon Spring Lake. The result of the hearing of the consolidated case was the renditionof a decree dismissing the bill filed by the Attorney General and others for want of equity and granting the relief prayed for in the bill filed by the drainage district. The present appeal is prosecuted by the complainants below in the bill filed by the Attorney General and the defendants below in the other bill.

Since all of the questions and the material facts necessary to their determination are fully presented in the proceeding by the Attorney General for an injunction against the drainage district, it will only be necessary to treat the consolidated cases as one case, and in so doing the people of the state of Illinois, represented by the Attorney General, and the Canal Commissioners of the State of Illinois, will hereinafter be referred to as appellants, and the commissioners of the drainage district will be referred to as appellees.

In order to understand the nature of this controversy it will be necessary to give a general description of Spring Lake and the territory surrounding it, which is embraced within the boundaries of Spring Lake Drainage and Levee District.

Spring Lake is a body of water about 9 miles long and from 100 yards to a half mile in width in its natural condition. The lake extends northeasterly and southwesterly, almost parallel with the eastern bank of the Illinois river but at some distance therefrom. At the southerly end the lake is connected with the Illinois river by an outlet extending easterly for about a quarter of a mile, thence turning northerly into the lake proper. Between the lake and Illinois river there is a large body of swamp land, containing about 14,000 acres, which is embraced within the drainage district. Substantially all of this body of land is subject to overflow from the Illinois river at times of extreme high water. The object in organizing the drainage district was to reclaim the lands lying between the Illinois river and Spring Lake, and other adjacentswamp lands, by the construction of a levee on the southerly bank of the Illinois river and across the southerly outlet of Spring Lake to the bluffs, and construct ditches and establish a pumping station to pump the water out of the basin inclosed within the levee and the bluffs southeasterly of Spring Lake. In 1877 the Legislature of the state made an appropriation for the construction of what is known as the Copperas Creek lock and dam in the Illinois river, which was constructed about three miles north of the point where the outlet of Spring Lake connects with the river. After the Copperas Creek dam was constructed a wing dam was built connecting with said dam and extending southeasterly across the low lands between Spring Lake and the river and across Spring Lake to the bluffs, in order to impound the water above the Copperas Creek dam and thereby raise the water level in the Illinois river. The effect of constructing the wing dam from the Copperas Creek lock to the bluffs and across Spring Lake was to prevent boats of any considerable draft from entering the lake through its natural outlet or from passing from the lake over the wing dam to the river. In order to obviate this difficulty and to re-establish navigation on Spring Lake in connection with the Illinois river, the Legislature appropriated $6,200 out of the net revenues received by the Canal Commissioners for the purpose of constructing a canal from the Illinois river to Spring Lake above the Copperas Creek dam. In pursuance of this act of the Legislature the Canal Commissioners constructed a canal from the northerly end of Mud Lake to the Illinois river. This canal was completed in 1879 and afforded a channel for navigation from the Illinois river through the canal to Mud Lake and thence through Mud Lake to Spring Lake; these two lakes being connected in their natural condition. This canal entered the Illinois river seven or eight miles above Copperas Creek lock and dam, and was used, after its completion, as a means of ingress andegress between the river and Spring Lake by steamboats and other water crafts navigating the Illinois river and Spring Lake. This canal remained open until the summer of 1909, when a dike or levee was constructed across the same by appellees near the Illinois river, thereby again cutting off Spring Lake from any connection with the Illinois river. In 1903 the Spring Lake Drainage and Levee District was organized under the levee act of Illinois. The district as originally organized included the land lying adjacent to and on both sides of the canal, and also the lands lying between the Illinois river and Spring Lake from a point between the northerly end of said lake to a point between the wing dam and the Copperas Creek lock and the outlet of Spring Lake to Illinois river at the southerly end. The plans for the drainage of this district included the construction of a levee along the southerly side of the Illinois river and across the canal, and also across Spring Lake at the southerly boundary of said district, so as to connect with the bluffs beyond the lake and drain the waters from the lake and wholly destroy navigation thereon. In July, 1905, the Attorney General of the state, on the information of divers parties, filed an information in the nature of a bill in equity in the circuit court of Tazewell county against the Spring Lake Drainage and Levee District and the commissioners thereof, alleging that Spring Lake was a navigable body of water the title to which was in the state of Illinois, and alleging that appellees were threatening to construct a dike across the canal connecting the said lake with the Illinois river, and praying that the appellees be perpetually enjoined from so constructing the said dike across the canal or otherwise obstructing or interfering with the free passage of canal boats and other water crafts through said canal and on Spring Lake, and from draining or lowering the water in Spring Lake or interfering with navigation thereon. Appellees were served with process and appeared in said cause and filed their general and special demurrer to the information.While the cause was pending on demurrer, all of the parties in interest entered into a written stipulation which was intended to be a settlement of all questions involved in the suit then pending. This stipulation was properly entitled in the cause then pending, and after such title is as follows:

‘And now on this day, this cause coming on to be further heard, come again all the parties herein, as heretofore, by their respective solicitors, and now, by agreement of all the parties in the above-entitled cause, this cause is now dismissed as per the following stipulation now filed herein, which is in words and figures as follows, to wit:

‘Whereas, there is now pending in the circuit court of Tazewell county, in the state of Illinois, a certain information in equity brought by William H. Stead, Attorney General, for and on behalf of the people of the state of Illinois, and the Canal Commissioners of the State of Illinois, on relation of John Bolander, Edward Bolander, Edward S. Haas, John Huddleston, J. M. Brewer, Edward Bailey, J. C. Losch, and Henry Lemm, of said Tazewell county, Illinois, against the Spring Lake Drainage and Levee District in Tazewell county, in the state of Illinois, and Howell J. Puterbaugh, Leonard L. Preston, and Joseph Dailey, commissioners of the Spring Lake Drainage and Levee District of Tazewell county, in the state of Illinois, asking certain relief as therein prayed and for an injunction against said defendants to restrain and enjoin them from obstructing, hindering or interfering with the passage of canal boats through the channel from the Illinois river to said Spring Lake, and from obstructing or interfering with the navigation and free passage of canal boats and other water crafts upon the water of said Spring Lake, and from draining the water from or lowering the water level in said Spring Lake, and for certain other relief as...